exv10w15w1






Exhibit 10.15.1




BIOTROVE, INC.




AMENDED AND RESTATED EMPLOYMENT AGREEMENT

(Paul Pescatore)




     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated as of December 5, 2007 (the
“Effective Date”) and amended as of May 30, 2008 (the “Amendment Date”) by and
between BioTrove, Inc. with a mailing address at 12 Gill Street, Suite 4000, Woburn, MA 01801-1728
(the “Company”) and Paul Pescatore, with a mailing address set forth under the Executive’s
name on the signature line (the “Executive”).



R E
C I T A L S




     A. The Company is engaged in the business of researching, developing, manufacturing,
commercializing, providing service and selling systems and technologies for use in the field of
pharmaceutical drug discovery, biotechnology, materials discovery and molecular diagnostics (the
“Business”).



     B. The Company and Executive desire to enter into this Agreement to reflect the terms and
conditions on which the Company employs the Executive.



     C. The Compensation Committee of the Company (the “Committee”) believes that it is in the best
interests of the Company and its shareholders to provide the Executive with an incentive to
continue his employment and to motivate the Executive to maximize the value of the Company in the
event of a Change of Control for the benefit of all Shareholders.



     D. The Committee believes that it is important to provide the Executive with certain benefits
upon Executive’s termination in certain instances or upon a Change in Control that provide the
Executive with enhanced financial security and incentive and encouragement for the Executive to
remain with the Company notwithstanding the possibility of a Change in Control and in return the
Company receives the benefits set forth herein.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged the Company and the Executive hereby agree as follows:



     1. Term. The Company agrees to employ the Executive, and the Executive agrees to accept such
employment, on the terms and conditions hereinafter as an at will employee. As an at-will
employee, subject to the terms and conditions hereof, the Company may terminate the Executive’s
employment at any time and for any reason or no reason. While employed by the Company, the terms
and conditions of the Executive’s employment shall be governed by this Agreement. The period in
which the Executive is employed shall be referred to herein as the “Term”.



     2. Capacity. The Executive shall be employed as Senior VP of Quality and Operations of the
Company. In such capacity, the Executive shall report to and be subject to the supervision of the
President and CEO of the Company. The Company shall employ the Executive on a full-time basis and
the Executive shall devote his full time diligent professional efforts to the performance of his
duties as Senior VP of Quality and Operations of the Company. The Executive’s place of
employment will be the head office of the Company. The Executive shall adhere to the business
policies of the Company in the performance of his duties, including without limitation as set forth
in the Employee



 









 







Handbook and as the Company may otherwise or additionally establish.



     3. Compensation and Benefits.



          (a) Base Compensation. The Company shall pay to the Executive a base salary at an annual rate
of US $210,000.00, payable in bi-monthly installments of $8,750.00 each.




          (b) Compensation Adjustment. The Executive’s annual base salary shall be reviewed annually by
the Committee and may be adjusted upward at the sole discretion of the Committee.




          (c) Executive and Other Bonus Plans. The Executive shall be entitled to participate in any
bonus plan approved by the Committee in its sole discretion for Company executives in general.
While there are no guarantees that there will be a bonus plan in any particular year, or that any
bonus plan will be funded at any particular level, the Executive shall participate in any such plan
without discrimination. If a bonus plan is approved for a particular year, the Executive shall be
entitled to participate in the bonus plan and shall receive a bonus under the bonus plan consistent
with the terms of the bonus plan.




          (d) Benefits. The Executive shall have the benefits set forth on Exhibit A. The
Executive shall be entitled to participate in any other benefits program approved by the Committee
for Company executives in general and/or as set forth in the Employee Handbook as adopted by the
Company from time to time. The Executive’s participation in any benefit program shall be at the
same level of employee/employer contribution as has been set for all participants in such plans, in
accordance with applicable law.




          (e) Reimbursement of Expenses. The Company shall promptly reimburse the Executive for
all reasonable and necessary business expenses incurred by the Executive in the furtherance of, and
in connection with, the Business of the Company, including, without limitation, travel, board,
lodging, telephone and postage, in accordance with the Company policies in effect from time to
time. To obtain reimbursement, the Executive shall submit to the Company an itemized statement of
such expenses together with copies of bills and receipts. Notwithstanding the foregoing, the
Company may require additional documentation and/or explanations in order to reimburse the
Executive.




     4. Non-Competition.



          (a) Definitions. Certain capitalized terms used in this Section 4 shall have the following
meanings:





“Competing Organization” means any person or organization, including the Executive,
engaged in, or that anticipates becoming engaged in, researching, acquiring,
producing, distributing, providing investigating, developing, manufacturing,
marketing, supervising, licensing or commercializing a Competing Product or Service
anywhere in the world.




“Competing Product or Service” means any product, process, or service of any person
or organization other than the Company or any of its subsidiaries, in existence or
under development, (i) which is identical to, substantially the same as, in
competition with, or an adequate substitution for any product, process, or service
of the Company or any of its subsidiaries, in existence or under



 









 






development, or about which the Executive acquires Confidential Information, and
(ii) which is (or could reasonably be anticipated to be) marketed or distributed or
is under development to be marketed or distributed, as to compete with such
product, process or service of the Company or any of its subsidiaries.



          (b) Employment with a Competing Organization. Notwithstanding the provision of this
Section 4, the Company agrees to permit the Executive to accept employment with a Competing
Organization during the twelve (12) month period after termination of the Executive’s employment
with the Company, either directly or indirectly, do not relate to any Competing Product or Service,
and provided that the Executive shall have delivered to the Company a written statement, confirmed
in writing by the Executive’s prospective employer, describing the Executive’s duties and stating
that all such duties will be wholly unrelated, either directly or indirectly, to any Competing
Product or Service and the Executive will not be required or asked to disclose any Confidential
Information of the Company in the course of the performance of his duties. The term “wholly
unrelated” shall mean among other things that the Executive will not work in, consult with,
cooperate with or provide information to any person, department or business segment of the
Competing Organization which is researching, acquiring, producing, distributing, providing,
investigating, developing, manufacturing, marketing, supervising, licensing or commercializing any
Competing Product or Service.




          (c) Stipulations. As a material inducement to the Company’s willingness to employ the
Executive, and in order to protect the Company’s Confidential Information and good will, the
Executive agrees to the following stipulations:





	 	(i)	 	During the Term and for a period of one year after termination of the
Executive’s employment with the Company, the Executive will not, directly or
indirectly, solicit or divert business from any of the customers or accounts of
the Company.
	 
	 	(ii)	 	During the Term and for a period of one year after the Executive’s
termination of employment with the Company, the Executive will not render
services, directly or indirectly, as an employee, consultant, director, advisor or
otherwise, to any Competing Organization.
	 
	 	(iii)	 	During the Tern and for a period of one year thereafter, the
Executive will not solicit any of the Company’s employees or consultants to leave
the employ of the Company or hire or cause to be hired any person who was during
or for six months after the termination of Executive’s employment by the Company
an employee or consultant of the Company.





     5. Disclosure of Developments. The Executive will make full and prompt disclosure to the
Company of all inventions, original works or authorship, improvements, modifications, discoveries,
creations, methods, processes and developments which are within the scope of the Company’s actual
or reasonably anticipated business and which are made or conceived by the Executive alone or
together with others during the term of his employment, whether or not such developments are
patentable or protected as confidential information, whether or not such developments are in
process or reduced to practice, whether or not such developments are made or conceived during
normal working hours or on or off the premises of the Company (all of which are hereinafter
collectively termed “Developments”), and whether or not such Developments are assignable to
the Company under the provisions of Section 6 below.



 









 





     6. Assignment of Developments.



          a. The Executive agrees to assign and hereby assigns to the Company all title, interests and
rights, including, without limitation, intellectual property rights, in and to any, and all
Developments, and agrees to assign to the Company any and all patents and patent applications
arising from such Developments, and agrees to execute and deliver such assignments, patents and
patent applications and other documents (including, without limitation, powers of attorney) as the
Company may direct, and agrees to cooperate fully with the Company during the Term, to enable the
Company to secure and maintain rights in said Developments in any and all countries. In the event
that any of such Developments are by operation of applicable state law excluded from this
assignment, the Executive agrees that the Company shall have a non-exclusive, fully paid license to
use for all purposes any such Developments not assigned to the Company under this Section 6. The
Executive understands and agrees that the Company shall determine, in its sole and absolute
discretion, whether an application for patent, copyright, mask work registration, or for any other
intellectual property right shall be filed on any Development which is assigned to the Company
under this Agreement, and whether such application shall be prosecuted or abandoned prior to
issuance or registration.




          b. If the Company is unable to procure Executive’s signature, within thirty (30) days
following delivery of written request therefor, on any document reasonably necessary to apply for,
prosecute, obtain, or enforce any patent, copyright, trademark or other right or protection
relating to any Development, whether by reason of Executive’s mental or physical incapacity,
Executive’s unavailability, or any other cause whatsoever, then Executive agrees and hereby
irrevocably appoints the Company and each of its duly authorized officers as the Executive’s agent
and attorney-in-fact, to act for and in Executive’s behalf to execute and file any such document
and to do all other lawfully permitted acts to further the prosecution, issuance, and enforcement
of patents, copyrights, or other rights or protections, with the same force and effect as if
executed and delivered by Executive.




     7. Copyright. The Executive acknowledges that all works of authorship and all mask works that
fall within the scope of his employment are owned by the Company and are works made for hire.
Accordingly, the Executive agrees to assign and hereby assigns to the Company any and all
copyrights and mask work registration rights, and all other mask work rights in all material
prepared by him during the Term related to the Business.



     8. Confidentiality. During the course of his employment with the Company, the Executive shall
have access to, learn of, or participate in the development of the Company’s confidential
information or confidential information entrusted to the Company by other persons, corporations, or
firms. The Company’s confidential information includes matters not generally known outside of the
Company, such as, assays, nucleic acid sequences, amino acid sequences, vectors, cells, technical
data, methodologies, processes, know-how, trade secrets, experimentation, research and development
relating to existing and future products and services marketed or used by the Company (whether or
not such products or services are actually realized or pursued by the Company), and also any
information which gives the Company a competitive advantage including, without limitation, data
relating to the general business operations of the Company (e.g., sales, costs, profits, customer
lists, pricing methods, etc.). The Executive further agrees not to make use of such confidential
information except on the Company’s behalf whether or not such information is produced by his own
efforts. These restrictions shall apply to all such information whether written, oral, magnetic,
optical or in any other form. The Executive understands and agrees that his confidentiality
obligations under this Section 8 shall continue both during his employment and after termination of
his employment until such confidential



 









 







information becomes generally available to the public through legitimate means. It is
understood and agreed that specific information which the Executive may receive, observe, perceive,
create, develop, or learn while an employee of the Company shall not be deemed to be generally
available to the public merely because such specific information is embraced by more general
information that is generally available to the public.



     9. Return of Information. Upon termination of his employment or at any time upon the request
of the Company, the Executive agrees to deliver to the Company all records, lab books, drawings,
notebooks, notes, reports, correspondence, documents, computer disks and tapes and other data in
any and all forms (without retaining copies) which pertain to the Company’s confidential
information (whether prepared by the Executive or others) or Developments, and also to return to
the Company any equipment, tools, computers or other devices owned by the Company and in his
possession. The Executive agrees that the above documents, data and devices are the exclusive
property of the Company and shall not be copied or removed from the Company premises except in the
pursuit of the business of the Company.



     10. No Conflicts. The Executive hereby represents that he has no present obligation to assign
to any former employer, or any other person, corporation or firm (other than the Company),
Developments covered by Section 6. The Executive is not subject to any agreement, restriction,
right or interest in anyone limiting in any way the scope of this Agreement or his employment by
the Company or in any way inconsistent herewith. The Executive will not disclose to the Company,
or induce the Company to use, any confidential information of other persons, corporations, or firms
including his present or former employers (if any).



     11. Termination of Employment.



          (a) Change in Control. As used in Sections 11 and 12, a “Change in Control” shall be
deemed to have occurred upon the occurrence of any one of the following events:





	 	(i)	 	any “Person,” as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the “Act”)
(other than the Company, any of its subsidiaries, or any trustee, fiduciary or
other person or entity holding securities under any employee benefit plan or
trust of the Company or any of its subsidiaries), together with all
“affiliates” and “associates” (as such terms are defined in Rule 12b-2 under
the Act) of such person, shall become the “beneficial owner” (as such term is
defined in Rule 13d-3 under the Act), directly or indirectly, of securities of
the Company representing 50 percent or more of the combined voting power of
the Company’s then outstanding securities having the right to vote in an
election of the Company’s Board of Directors (“Voting Securities”) (in
such case other than as a result of an acquisition of securities directly from
the Company); or
	 
	 	(ii)	 	persons who, as of the date hereof, constitute the Company’s
Board of Directors (the “Incumbent Directors”) cease for any reason,
including, without limitation, as a result of a tender offer, proxy contest,
merger or similar transaction, to constitute at least a majority of the Board,
provided that any person becoming a director of the Company subsequent to the
date hereof shall be considered an Incumbent Director if such person’s
election was approved by or such person was nominated






 












 






	 	 	 	for election by either (A) a vote of at least a majority of the Incumbent
Directors or (B) a vote of at least a majority of the Incumbent Directors
who are members of a nominating committee comprised, in the majority, of
Incumbent Directors; but provided further, that any such person whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of members of the Board of
Directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board, including by
reason of agreement intended to avoid or settle any such actual or
threatened contest or solicitation, shall not be considered an Incumbent
Director; or
	 
	 	(iii)	 	the consummation of (A) any consolidation or merger of the
Company where the stockholders of the Company, immediately prior to the
consolidation or merger, would not, immediately after the consolidation or
merger, beneficially own (as such term is defined in Rule 13d-3 under the
Act), directly or indirectly, shares representing in the aggregate more than
50 percent of the voting shares of the Company issuing cash or securities in
the consolidation or merger (or of its ultimate parent corporation, if any),
or (B) any sale, lease, exchange or other transfer (in one transaction or a
series of transactions contemplated or arranged by any party as a single plan)
of all or substantially all of the assets of the Company; or
	 
	 	(iv)	 	the approval by the Company’s stockholders of any plan or
proposal of the liquidation or dissolution of the Company.





     (b) Notwithstanding the provisions of Section 1, the Executive’s employment hereunder shall
terminate under the following circumstances:



     (i) Death or Disability. The Executive’s employment hereunder shall terminate upon his death
or disability (as hereinafter defined). For purposes of this Agreement only, the Executive shall
be deemed disabled if in the opinion of the Committee, determined in good faith relying
specifically on the opinion of a qualified regionally recognized medical doctor (to be chosen by
the Committee) specializing in such alleged disability, the Executive is unable to substantially
perform services hereunder due to illness, injury, accident or condition of either a physical
disability or mental illness for greater than one hundred eighty (180) days in the aggregate in any
twelve (12) month period.



     (ii) Termination by the Company for Cause. The Company may terminate the Executive’s
employment for Cause (as hereinafter defined) after seven (7) days’ prior written notice to the
Executive setting forth in reasonable detail the nature of such cause if during such period the
Executive shall not have cured the basis therefor. For the purposes hereof, “Cause” shall
be determined by the Committee of the Company acting in good faith and shall mean any of the
following:




	 	(A)	 	the conviction of the Executive by a court of competent
jurisdiction of any felony involving dishonesty, breach of trust or
misappropriation or the entering of a plea by the Executive of nolo contendre
thereto;
	 
	 	(B)	 	the commission by the Executive of an act of fraud upon, or
breaching his duty of loyalty to, the Company or any of its subsidiaries;




 









 












	 	(C)	 	a conviction for willful violation of any law, rule or
regulation governing the operation of the Company or any of its subsidiaries
which is punishable by imprisonment for six (6) months or more;
	 
	 	(D)	 	the substantial and continuing failure or refusal of the
Employee, after written notice thereof, to reasonably attempt to perform his
or her job duties and responsibilities (other than failure or refusal
resulting from incapacity due to physical disability or mental illness) which
failure or refusal is committed in bad faith and is not in the best interest
of the Company;
	 
	 	(E)	 	a breach by the Executive of Sections 4, 5, 6, 7, 8, 9 or 10
of this Agreement, which breach continues for more than seven (7) days after
written notice has been given to the Executive, such notice setting forth in
reasonable detail the nature of such breach; or
	 
	 	(F)	 	the deliberate and willful disregard of the written rules or
policies of the Company which results in a material and substantial loss,
damage or injury to the Company.





          (iii) Termination Without Cause. The Company may terminate the Executive without Cause at any
time subject to the terms and conditions hereof.




          (iv) Termination by the Executive for Good Reason. The Executive may terminate his or her
employment with the Company for Good Reason within one year following the occurrence of a Change in
Control. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of
the following events:





	 	(A)	 	a reduction in the Executive’s then-current annual base
salary or a bonus percentage which is agreed in writing; or
	 
	 	(B)	 	any failure to offer the Executive’s the same level of
benefits offered to similarly situated employees; or
	 
	 	(C)	 	a significant diminution in the Executive’s managerial
authority, duties or responsibilities; or
	 
	 	(D)	 	the relocation of the Executive’s primary business location
to a location that is outside a twenty-five (25) mile radius from the
Company’s current primary business location, which for purposes of this
Agreement is Woburn, Massachusetts. For purposes of clarification, a
relocation of more than twenty-five (25) miles if the Executive is required to
work out of an office located more, than twenty-five (25) miles from the
current primary business location for more than four (4) days per calendar
month; or
	 
	 	(E)	 	the failure to pay the Executive any portion of his or her
current base salary, bonus or benefits within twenty (20) days of the date
such compensation is due, based upon the payment terms currently in effect,
unless such payment is prohibited by law, regulation or rule; or




 









 






	 	(F)	 	the failure of the Company to obtain a reasonably
satisfactory agreement from any successor to assume and agree to perform this
Agreement; provided that any of the events described in clauses (A), (B), (C),
(D), (E) or (F) of this Section 11(b)(iv) shall constitute Good Reason only if
the Company fails to cure such event within thirty (30) days after receipt
from the Executive of written notice of the event which constitutes Good
Reason; provided, further, that Good Reason shall cease to exist for an event
on the sixtieth (60) day following its occurrence, unless the Executive has
given the Company written notice thereof prior to such date.





     12. Payments Upon Termination of Employment or Change in Control.



          (a) Payments Upon Termination by the Company for Cause; Termination due to the Death or
Disability of the Executive or Resignation of the Executive for any reason. If at any time during
the Term, the Company shall terminate the Executive for cause, if the Executive dies or suffers a
disability during the term or if the Executive resigns for any reason (other than for Good Reason),
the Executive shall be entitled to receive from the Company only such portion of the base salary
(determined in accordance with Section 3(a)) as is accrued and unpaid through the date of such
termination. The Executive will immediately forfeit all then unvested options and unvested
restricted stock.




          (b) Payments Upon Termination Without Cause or for Good Reason. If at any time during the
Term (i) the employment of the Executive is terminated without Cause by the Company or (ii) the
Executive terminates the Executive’s Employment for Good Reason, then in such case, subject to the
Executive signing the Company’s standard Termination and Release Agreement within 30 days of the
date of termination:





	 	(i)	 	The Company shall continue to pay to the Executive, or to his
personal representative(s) (in case of his death), the Executive’s base salary
in effect just prior to the date of such termination for a period equal to
twelve (12) months after the date of termination (the “Severance
Period”) payable in installments as and when such salary would normally
have been paid as provided in Section 3(a). In all cases, severance payments
hereunder shall continue only so long as the Executive continues to comply
with and not breach the terms of this Agreement and the Termination and
Release Agreement and in the event of such noncompliance or breach, all
severance payments shall immediately be terminated.
	 
	 	(ii)	 	the Company shall maintain in effect during the Severance
Period, at its sole expense, all group insurance (including life, health,
accident and disability insurance) and, to the extent permitted by applicable
law, all other employee benefit plans, programs or arrangements in which the
Executive was participating at any time during the six (6) month period
preceding such termination provided that this obligation shall terminate as of
the date when then the Company is no longer required to make severance
payments under Section 12(b)(i). During the Severance Period if the Company
is unable to maintain the health insurance plan in which the Executive was
participating or provide the Executive coverage under the health insurance
plan because the Executive is ineligible for coverage




 









 






	 	 	 	under the terms thereof, the Executive shall be eligible to receive
continued group health plan benefits to the extent authorized by and
consistent with 29 U.S.C. § 1161 et seq. (COBRA), with the cost of the
regular premium for such benefits shared in the same relative proportion
by the Executive and the Company as in effect on the Date of Termination.
In all cases, provision of benefits hereunder shall continue only so long
as the Executive continues to comply with and not breach the terms of this
Agreement the Termination and Release Agreement and in the event of such
noncompliance or breach, all benefits (except as required by law) shall
immediately be terminated.
	 
	 	(iii)	 	All non-vested stock options or restricted stock in the
Company held by the Executive or in a trust established by the Executive for
the benefit of his spouse, children or heirs, will continue to vest according
to its applicable schedule during the Severance Period but only so long as the
Executive continues to comply with and not breach the terms of this Agreement
and the Termination and Release Agreement and in the event of such
noncompliance or breach, all then unvested stock options and restricted stock
shall be immediately terminated. It is understood that such continued vesting
may disqualify the shares options from being treated as incentive stock
options. The Executive’s period for exercising the options shall be extended
to the earlier of the expiration of the

	 	*{	 	Executive’s option agreement or
90-days following the termination of the Severance Period to exercise any
vested stock options.
	 
	 	(iv)	 	The Company shall pay to the Executive on the Termination
Date accrued but unused vacation for the year.




In the event that the Executive’s participation in any of the foregoing plans, programs or
arrangements contemplated by Clause (ii) of Section 12(b) is barred by law or otherwise, or in the
event that any such plan, program or arrangement is discontinued or the benefits thereunder are
materially reduced during such period, the Company shall provide the Executive with benefits
substantially similar to those to which the Executive was entitled immediately prior to the date of
his termination of employment, to the extent and for the periods specified in this Clause (ii) of
Section 12(b).




          (c) Section 409A. Anything in this Agreement to the contrary notwithstanding, if at the time
of the Executive’s termination of employment, the Executive is considered a “specified employee”
within the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986 as amended (the
“Code”), and if any payment that the Executive becomes entitled to under this Agreement is
considered deferred compensation subject to interest and additional tax imposed pursuant to Section
409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no
such payment shall be payable prior to the date that is the earliest of (i) six months after the
Executive’s Date of Termination, (ii) the Executive’s death, or (iii) such other date as will cause
such payment not to be subject to such interest and additional tax, and the initial payment shall
include a catch-up amount covering amounts that would otherwise have been paid during the first
six-month period but for the application of this Section.






 




			
	*	 	[handwritten] AS EXPLAINED IN THE ATTACHED LETTER
DATED 6-25-08 
PEP




 









 










          (d) Additional Limitation. In the event that any payment or benefit received or to be
received by Executive in connection with the termination of Executive’s employment (whether
pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the
Company, or any person affiliated with the Company or such person) (collectively “Parachute
Payments”) would not be deductible (in whole or part) as a result of section 280G of the Code,
by the Company, an affiliate or other person making such payment or providing such benefit, the
Company shall use its commercially reasonable efforts to obtain the requisite shareholder approval
necessary to avoid the application of Section 280G of the Code if such exception is available,
recognizing that the Executive is under no obligation to subject any payments to such approval, (a)
the Parachute Payments shall be reduced until no portion of the Parachute Payments is not
deductible, or (b) Executive shall pay the excise tax payable pursuant to Section 4999 of the Code
with respect to the excess Parachute Payment (as defined in Section 280G(b) of the Code), whichever
results in the Executive’s receipt of an after-tax basis of a greater amount of the Parachute
Payments.




     13. Notices. Any notices, requests, demands and other communications provided for by this
Agreement shall be sufficient if in writing and delivered in person or sent by registered or
certified mail, postage paid, to the Executive at the last address the Executive has filed in
writing with the Company, or, in the case of the Company, to the attention of its President. All
such communications shall be deemed given upon receipt. Any party may by notice in writing to the
other parties change the address to which notices to it or him are to be addressed hereunder.



     14. Miscellaneous.



          (a) Indemnification. During the period of his employment hereunder, the Company agrees to
indemnify the Executive in his capacity as an officer and Director of the Company and, to the
extent applicable, each subsidiary of the Company, all to the maximum extent permitted under
Section 145 of the Delaware General Corporation Law.




          (b) Entire Agreement. This Agreement constitutes the entire Agreement between the parties and
may not be changed except by a writing duly executed and delivered by the parties hereto.




          (c) Survival. Except as otherwise provided in this Agreement, the obligations of the Company
and the Executive contained in Sections 4, 5, 6, 7, 8, 9, 10, 12, 13 and 14 shall survive the
termination of this Agreement.




          (d) Governing Law. This Agreement is governed by and shall be construed in accordance with
the internal laws of the Commonwealth of Massachusetts. The parties hereby consent to the
jurisdiction of the Superior Court of the Commonwealth of Massachusetts and the United States
District Court for the District of Massachusetts. Accordingly, with respect to any such court
action, the Executive (a) submits to the personal jurisdiction of such courts; (b) consents to
service of process; and (c) waives any other requirement (whether imposed by statute, rule of
court, or otherwise) with respect to personal jurisdiction or service of process.




          (e) Enforcement. In view of the substantial harm that will result from the breach by the
Executive of any of the covenants contained in Sections 4, 5, 6, 7, 8 and 9, the parties agree that
such covenants shall be enforced to the fullest extent permitted by law. Accordingly, if, in any
judicial proceeding, a court shall determine that such covenants are unenforceable because they
cover too extensive a geographic area or survive for too long a period of time, or for any other
reason, then the parties intend that such covenants shall be deemed to





 












 




cover such maximum geographic area and maximum period of time and shall otherwise be deemed to
be limited in such manner as will permit enforceability by such court. If any term or provision of
this Agreement or the application thereof to any circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement or the application to other persons and
circumstances shall not be affected thereby and each term and provision hereof shall be enforced to
the fullest extent permitted by law.




          (f) Remedies. Executive agrees that his breach of any of the provisions of Sections 4, 5, 6,
7, 8 and 9 above will cause irreparable damage to the Company and that the recovery by the Company
of money damages will not alone constitute an adequate remedy for such breach. Accordingly, the
Executive agrees that such provisions may be specifically enforced against it or him, in addition
to any other rights or remedies available to the Company on account of any such breach, and the
Executive hereby waives the defense in any equitable proceeding that there is an adequate remedy at
law for any such breach and agrees that injunctive or other equitable relief will not constitute
any hardship upon the Executive.




          (g) Successors. This Agreement shall be binding upon the respective successors, assigns and
heirs of the parties hereto.




          (h) Legal Fees. The Company shall reimburse the Executive all reasonable and documented legal
fees, costs and expenses incurred in connection with contesting or disputing any failure by the
Company to pay any payments or take the actions set forth in Section 12 of this Agreement up to but
not exceeding $120,000. Notwithstanding anything to the contrary, the Company shall have no such
obligation to pay the Executive for such legal fees, costs and expenses if the final resolution of
such matter is determined by a court of competent jurisdiction to be in the Company’s favor.




          (i) Effect on Other Plans. An election by the Executive to resign after a Change in Control
for Good Reason under the provisions of this Agreement shall not be deemed a voluntary termination
of employment by the Executive for the purpose of interpreting the provisions of any of the
Company’s benefit plans, programs or policies. Nothing in this Agreement shall be construed to
limit the rights of the Executive under the Company’s benefit plans, programs or policies except
that the Executive shall have no rights to any severance benefits under any Company severance pay
plan. In the event that the Executive is party to an employment agreement with the Company
providing for change in control payments or benefits, the Executive must elect to receive either
the benefits payable under such other agreement or the benefits payable under this Agreement, but
not both. The Executive shall make such an election in the event of a Change in Control.




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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a sealed document on
the date first above written.



	 	 	 	 	 
	ATTEST:

	 	 	BIOTROVE, INC.
	 
	 	 	 	 
	 
	 	 	By: 	 /s/ Albert A. Luderer
	Secretary 
	 	 	Name: Albert A. Luderer, PhD.
	 
	 	 	Title: President and CEO
	 
	 	 	 	 
	WITNESS:
	 	 	 	 
	 
	 	 	 	 
	      /s/ Paul E. Cochran

	 	 	 	/s/ Paul Pescatore
	 

	 	 	 
	 

	 	 	Paul Pescatore
	 

	 	 	Address:
	 

	 	 	118 Drake Road
	 

	 	 	Burlington, MA 01803






 








 






Exhibit A




     1. Vacation. The Executive shall be entitled to four weeks paid vacation in each
calendar year during the term of the agreement. Unused vacation time shall not be accrued from
year to year. The Executive shall also be entitled to all paid holidays recognized by the Company.
The Executive shall take no more than two weeks of vacation during any period consecutively.



     2. Insurance and Other Benefit Plans. The Executive shall be entitled to participate
in the Company’s hospitalization, medical, dental, long term disability, group-term life and other
similar insurance plans as they may exist and be generally available to the Company’s employees
from time to time in accordance with the terms of such plans.



     3. Options. In addition to the Executive’s participation in the Company’s 2000 Stock
Option Plan, the Executive has been granted a common stock option equity award of 50,000 shares @
$.50 per share. This grant will immediately vest in full if the Executive is terminated without
Cause. Otherwise, this grant will vest according to the terms of the Executive’s Option Agreement
and the Company’s 2000 Stock Option Plan.



     4. PTO. PTO accrual limits will be waived for the Executive and no PTO cap applied
until 300 hours are earned. Accrued and unused PTO will be paid out at time of termination.